Professional vs homemade wills

Family Law|October 16th 2014

Wills are supposed to ensure the smooth recognition of a deceased person’s wishes and help their friends and families come to terms with their loss.

Buying a will is “fraught with risk and uncertainty”, according to the Legal Ombudsman.

In a newly published report, the regulator highlights the absence of regulation – anybody can write a will and no legal training is required. The report suggests that as many as 180,000 wills are drafted each year by non-lawyers, leaving consumers exposed and with little redress if costly mistakes are made.

Chief Legal Ombudsman Adam Sampson called on the government to consider extending regulation to all will writers or at least to establish a voluntary scheme. Every solicitor with expertise in the drafting of wills would support this call I’m sure: regulation protects consumers against the risks of fraud, poor advice, poor service and overcharging.

For solicitors regulation is an inbuilt requirement that goes with the job. All solicitors are regulated by the Solicitors Regulation Authority and so will advice is always regulated. But there is no obligation on other will writers be regulated and often consumers may simply assume that the person giving them advice is legally trained. The issue of regulation may not even be considered.

But just what are the benefits of regulation for will writing?

Firstly, regulation means that if a problem comes to light in the future there is redress available to the consumer. What this means is that if obligations are not complied with, or a mistake occurs in the drafting of a will, there is financial compensation available by way of indemnity insurance and loved ones therefore have a remedy.

Secondly, regulation drives quality of service. Advice given should take into account the bigger picture and anticipate and discuss future changes in circumstances. This provides true value for money.

The process of preparing a will from start to finish is a delicate one that should follow a strict code of practice. There must be true independence and impartiality on the part of the adviser. Solicitors are officers of the court and have a duty of care to act in the best interests of their client. Part of this process is assessing whether or not a person is capable of making a will and ensuring that they are not under any duress or pressure when making decisions. Particular care and skill is needed in dealing with vulnerable clients and knowing when to liaise with medics.

There are also additional accreditations that the consumer should be aware. The Society of Trusts and Estates Practitioners (STEP) is an internationally recognised organisation and its members are under an obligation to follow a detailed code of practice for will instructions and are also qualified to provide more complex trust advice/ lifetime planning. In addition the Solicitors for the Elderly (SFE) is a respected organisation dedicated to providing tailored legal advice relevant to later life.

Just what is so wrong with home-made and unregulated wills?

Home made wills or wills prepared by a junior clerk with no bespoke legal training may do the job required in some cases, but it is the broader advice that is often lacking and this will be reflected in the document eventually produced.

We no longer live in the traditional family units of even 30 years ago. Blended families are now the norm. The family dynamic is more complex and as a result a will with flexible terms is often required. A typical example of this is a second marriage scenario where both parties have children from a previous marriage or relationship. Often both parties want to ensure protection for the survivor should bereavement occur, but at the end of the day do not want their respective hard-earned savings to pass away from their own bloodline children. A flexible will can allow a survivor to be catered for in their lifetime or until they remarry or cohabiting, via the use of a trust. The savings would then be protected, eventually passing to the children rather than into the survivor’s own will.

Home-made wills often fail to deal with or anticipate the valuable inheritance tax allowances that are legitimately available to individuals. Inheritance Tax advice is more relevant than ever before and it is important to obtain specialist advice from a solicitor specialising in this area.

Challenges to the validity of wills are also on the increase. If you want future protection for your will then a professional adviser involved at the point of drafting is vital.

Often an individual is prompted to make a will only when they are ill, vulnerable or regarded as frail because of old age.To avoid disputes by disappointed family members, it is vital that professional advice is sought. As a golden rule solicitors will, wherever possible, obtain a medical report addressing that person’s capacity to create or give instructions regarding a will.

So, as tempting as a home-made will may seem, a professionally drafted testament could make all the difference to your family.

Photo by Marc Roberts via Flickr

Author: Jane Gray

Jane is a solicitor in Stowe Family Law’s Hale office in Cheshire. She has 15 years of experience in wills, tax trusts and probate law and is a fully qualified member of the Society of Trusts and Estate practitioners (STEP).

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